“An employer who denies liability for a compensable injury is in no position to insist upon the statutory provisions respecting the choosing of physicians.”
How later courts described this case
- “An employer who denies liability for a compensable injury is in no position to insist upon the statutory provisions respecting the choosing of physicians.”
Written by the judges who cited it.
The opinion
FILED
Aug 30, 2018
08:29 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
REGINALD MILLER, SR., ) Docket No. 2018-06-0225
Employee, )
v. )
LOGAN’S ROADHOUSE, INC., ) State File No. 3595-2018
Employer, )
And )
AGRI GENERAL, ) Judge Joshua Davis Baker
Carrier. )
____________________________________________________________________
EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS
(DECISION ON THE RECORD)
____________________________________________________________________
This claim came before the Court on Mr. Miller’s request for expedited hearing.
Mr. Miller asked the Court to decide his interlocutory claim for benefits based on a
review of the record without an evidentiary hearing. Logan’s did not oppose his request.
This Court determined it needed no further information to determine Mr. Miller’s request
and issued a docketing notice giving the parties until August 7, 2018, to file position
statements. Both parties filed statements.
Mr. Miller seeks temporary disability and medical benefits, including
reimbursement of medical expenses, for a head injury he suffered in a fall while working
at Logan’s. Logan’s argues his injury was not primarily caused by his employment
and/or is idiopathic in nature. This Court holds Mr. Miller presented sufficient evidence
to establish he would likely succeed at a hearing on the merits concerning entitlement to
additional medical treatment and payment of some past medical expenses. The Court
denies his request for temporary disability benefits.
Claim History
As Mr. Miller requested a decision without an evidentiary hearing, the Court
derived the facts from file-documentation. While working in Logan’s kitchen, Mr. Miller
felt faint, lost consciousness, and fell. In the fall, he injured his head and left elbow. He
attributed his loss of consciousness to fumes from a chemical oven-cleaner and heat
emanating from the ovens that a coworker was cleaning. Logan’s denied his claim and
paid for none of his medical care.
Mr. Miller sought emergent care at Sumner Regional Medical Center. The
medical records indicate he passed out at work, fell, and hit his head on a shelf. Dr.
Vivian Lei diagnosed a “superficial injury of head; contusion of left elbow.” She
reported his head had “a 1 cm laceration,” which required a staple, and “tenderness over
the left elbow.” Using imaging studies, providers found “no evidence of skull fracture or
acute intracranial hemorrhage” and “no evidence of fracture or malalignment” in his left
elbow. An elbow MRI revealed only “mild degenerative changes.” Dr. Lei instructed
Mr. Miller to see his primary care physician, Dr. Jack Patterson, for staple-removal and
follow-up care.
A week later, Dr. Patterson removed the staple and recommended a CT scan of
Mr. Miller’s head because of his complaints about headaches, balance and memory loss.
The CT scan demonstrated “no acute intracranial abnormality.” Dr. Patterson then
recommended a neurologic examination. When asked whether the “injury” resulted in
permanent disability, Dr. Patterson declined to answer citing a lack of qualification. He
also noted Mr. Miller was “still on disability unrelated to injury.”
Due to the neurology referral from Dr. Patterson, Mr. Miller saw Dr. Wesley
Chou. He recommended a brain MRI and EEG, which proved normal. Dr. Chou also
reported normal results from physical and neurological examinations.
Several months after his fall, Mr. Miller attended a previously-scheduled
orthopedic appointment for an unrelated condition. He told his physician, Dr. Chaitanya
S. Malempati, that he “injured his back and both knees” in a fall at work. Mr. Miller
complained of lower back and left shoulder pain, “shooting pain down both legs,” and
“difficulty ambulating.” Dr. Malempati noted no abnormalities from pelvic and lumbar
spine x-rays, apart from degenerative disc disease, and suggested an MRI of the lumbar
spine if his symptoms worsened. He recommended physical therapy for left shoulder
pain and decreased arm strength.
Findings of Fact and Conclusions of Law
Mr. Miller must present sufficient evidence to show he would likely prevail at that
final hearing to receive relief at this expedited hearing. See Tenn. Code Ann. § 50-6-
239(d)(1) (2017); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App.
Bd. LEXIS 6, at *9 (Mar. 27, 2015). The Court holds he carried that burden regarding
his request for medical benefits and payment for some past medical treatment.
2
To establish causation, Mr. Miller must show he suffered an injury “caused by a
specific incident, or set of incidents, arising primarily out of and in the course and scope
of employment . . . [that] is identifiable by time and place of occurrence.” An injury
“arises primarily out of and in the course and scope of employment” only if the
“employment contributed more than fifty percent (50%) in causing the injury,
considering all causes[.]” Tenn. Code Ann. § 50-6-102(14).
In his affidavit and Petition for Benefit Determination, Mr. Miller claimed he
passed out and hit his head after being exposed to high temperatures and fumes from an
oven-cleaner. While not stated in his affidavit, emergency room records indicate he hit
his head on a shelf when he fell. The incident occurred while he worked in the kitchen at
Logan’s. Logan’s presented no evidence contradicting Mr. Miller’s version of events.
Logan’s argued Mr. Miller cannot prevail because he failed to produce medical
proof that his injury arose primarily out of his work. Specifically, he failed to produce a
doctor’s opinion affirmatively linking his fainting episode to heat and fume exposure.
However, at an expedited hearing, an employee need not establish medical causation by a
preponderance of the evidence. See Lewis v. Molly Maid, 2016 TN Wrk. Comp. App.
Bd. LEXIS 19, at *8-9 (Apr. 20, 2016). Rather, if the employee comes forward with
evidence showing that a work event resulted in injury, it may be sufficient to support an
order compelling an employer to provide a panel. Id.
The Court finds that Mr. Miller presented sufficient evidence to establish that he is
entitled to a panel of physicians. Logan’s argument concerning lack of evidence on
medical causation is premature.
Logan’s also asserted that Mr. Miller’s injury is idiopathic. The Court disagrees.
An idiopathic injury has “unexplained origin or cause, and generally does not arise out of
the employment unless ‘some condition of the employment presents a peculiar or
additional hazard.’” Frye v. Vincent Printing Co., 2016 TN Wrk. Comp. App. Bd. LEXIS
34, at *11 (Aug. 2, 2016) (internal citation omitted). “Cause” in this context is not
“proximate cause” as used in the law of negligence; rather, “cause means that the
accident originated in the hazards to which the employee was exposed as a result of
performing his or her job duties.” Id. at *12.
Logan’s cited two cases supporting its argument: Sudduth v. Williams, 517 S.W.2d
520 (Tenn. 1974); and Dickerson v. Trousdale Mfg. Co., 569 S.W.2d 803 (Tenn. 1978).
In those cases, however, the facts showed the employees lost consciousness due to
conditions unrelated to the workplace: a seizure and fainting spell, respectively.
Additionally, the employees fell and hit the floor. Here, Mr. Miller alleged that he passed
out from exposure to heat and oven-cleaner fumes. Additionally, the emergency room
records indicated he hit his head on a shelf when he fell. The Court holds the heat,
fumes, and the shelf presented special hazards inherent in Mr. Miller’s job, and his
3
testimony concerning the circumstances of the incident is relevant to the determination of
causation. See Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 676 (Tenn. 1991);
Tindall v. Waring Park Ass’n, 725 S.W.2d 935, 937 (Tenn. 1987).
Further, while Logan’s claimed Mr. Miller’s preexisting conditions caused him to
pass out, it provided no evidence to support this claim. Mr. Miller admitted he suffered
from other unnamed conditions, and Dr. Patterson noted he was on disability near the
time of his accident. However, despite his suffering from other conditions, none of the
proof linked his workplace incident to those conditions, and none of the proof
contradicted Mr. Miller’s version of the incident. For all these reasons, the Court holds
Mr. Miller would likely prevail at a hearing on the merits in his request for medical
treatment. Although it is unclear what further treatment Mr. Miller may need, the Court
orders Logan’s to provide continuing medical treatment with Dr. Patterson, who can
make decisions concerning the necessity of additional treatment for this injury. See
Young v. Young Elec. Co., 2016 TN Wrk. Comp. App. Bd. LEXIS 24, at *18 (May 25,
2016) (citing GAF Bldg. Materials v. George, 47 S.W.3d 430, 433 (Tenn. Workers'
Comp. Panel 2001) (“An employer who denies liability for a compensable injury is in no
position to insist upon the statutory provisions respecting the choosing of physicians.”)).
The Court also finds Mr. Miller would likely prevail at a hearing on the merits in
proving his claim for some of his past medical expenses. Logan’s must provide Mr.
Miller “medical and surgical treatment . . . as ordered by the attending physician . . .
made reasonably necessary by accident” at no cost to him. Tenn. Code Ann. § 50-6-
204(a)(1)(A). Because Logan’s failed to provide Mr. Miller a panel it ran “the risk” of
being held responsible to pay for medical treatment he incurred while treating with
physicians of his choice. See McCord at *13 (“[A]n employer who elects to deny a claim
runs the risk that it will be held responsible for medical benefits obtained from a medical
provider of the employee's choice[.]”). The Court holds that Logan’s must pay the cost
for treatment made reasonably necessary by the accident.1
Mr. Miller received medical care from several providers on the date of the
accident and soon afterward. On the day of the accident, Mr. Miller was transported by
ambulance to Sumner Regional Medical Center where he received emergency treatment
for his head injury. At Sumner, Dr. Lei placed staples in his head to close the wound; she
also instructed Mr. Miller to follow up with his primary care doctor, Dr. Patterson, to
have the staples removed. Dr. Patterson removed the staples and ordered a CT scan due
to complaints about headaches, balance and memory loss. Dr. Patterson then
recommended a neurologic examination, and Mr. Miller treated with Dr. Chou. Dr. Chou
ordered a brain MRI and an EEG, which produced normal results. The Court finds the
medical care from these providers was reasonably necessary for treatment of Mr. Miller’s
1
Logan’s objected to inclusion of medical bills in the record citing lack of foundation and insufficient
proof of reasonably medical necessity as bases for the objection. The Court denies the objection.
4
accident and orders Logan’s to pay the associated costs. The Court holds that the
treatment provided by Dr. Malempati was not reasonably necessary.
Lastly, Mr. Miller requested temporary disability benefits. In order to prove
entitlement to temporary total disability benefits, the worker must show (1) he is totally
disabled and unable to work due to a compensable injury, (2) the work injury and
inability to work are causally connected, and (3) the duration of the disability. Jewell v.
Cobble Constr. & Arcus Restoration, 2015 TN Wrk. Comp. App. Bd. LEXIS 1, at *21
(Jan. 12, 2015). Mr. Miller failed to prove all three elements, so the Court denies his
request for temporary disability benefits at this time.
It is ORDERED as follows:
1. Logan’s shall provide Mr. Miller continuing medical treatment with Dr. Patterson.
2. Logan’s shall pay for the medical treatment previously provided Sumner Regional
Medical Center, Dr. Lei, Dr. Patterson, and Dr. Chou. It shall also pay for the
ambulance transport on the date of the accident, the CT scan, the MRI and the
EEG.
3. The Court denies Mr. Miller’s request for temporary disability benefits.
4. This matter is set for a status conference on Monday, October 22, 2018, at 9:00
a.m. (CDT). You must call 615-741-2113 or toll-free 855-874-0474 to
participate in the Hearing. Failure to call may result in a determination of
issues without your further participation.
5. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance
with this Order must occur no later than seven business days from the date of entry
of this Order as required by Tennessee Code Annotated section 50-6-239(d)(3).
The Insurer or Self-Insured Employer must submit confirmation of compliance
with this Order to the Bureau by email to WCCompliance.Program@tn.gov no
later than the seventh business day after entry of this Order. Failure to submit the
necessary confirmation within the period of compliance may result in a penalty
assessment for non-compliance. For questions regarding compliance, please
contact the Workers’ Compensation Compliance Unit via email at
WCCompliance.Program@tn.gov.
ENTERED ON AUGUST 30, 2018.
___________________________________
Joshua Davis Baker, Judge
Court of Workers’ Compensation Claims
5
APPENDIX
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Affidavit of Reginald Miller, Sr.
5. Medical Records of Sumner Regional Medical Center
6. Medical Records of Dr. Jack Patterson, Patterson Medical Clinic
7. Medical Records of Medical Center Orthopaedics
8. Letter from Defense Counsel to Mediator dated May 24, 2018
9. Billing from The Medical Center at Franklin, Account Summaries
10. Billing from Sumner Regional Medical Center, Billing Date January 12, 2018
11. Billing from Commonwealth Financial Resources (CFR)
12. MRI Brain With and Without Contrast dated May 10, 2018
13. Duplex Ultrasound Carotid and Vertebral Arteries
14. Medical Records of Dr. Wesley Chou
15. Medical Records of the Graves-Gilbert Clinic
16. Billing and Account Summaries from Sumner County EMS for January 8, 2018
Date of Service
17. Billing from Sumner Radiology PC, Statement Date April 25, 2018
18. Billing from Imaging Consultants of Kentucky
19. Billings from Commonwealth Financial Resources dated April 20, 2018
20. Billing from Alcoa Billing Center
21. Billing from Emergency Physician Billing, Statement Date April 27, 2018
22. Billing from Dr. J. Kelly Patterson
23. Document Titled, “67 Pages to: Nicole Billings, From: Reginald Miller, Sr. Re:
Workman Compensation DCN May 24, 2018, Claim# 002865006505WC01”
24. The Medical Center at Franklin, CT Head Without Contrast, dated January 15,
2018
25. Orthopedist referral by Dr. J. Kelly Patterson for “Back/Shoulder/Leg Pain,”
dated 3/16/18
26. The Medical Center at Franklin, CT Head Without Contrast, dated January 15,
2018
6
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Order was sent to the following
recipients by the following methods of service on ______, 2018.
Name Certified Via Via Service sent to:
Mail Fax Email
Reginald Miller, X X 407 N. Russell St.
Self-represented Portland, TN 37148
Employee reginaldmiller@gmail.com
John Barringer, X jbarringer@manierherod.com
Employer’s Attorney
____________________________________________
Penny Shrum, Court Clerk
Court of Workers’ Compensation Claims
7
Expedited Hearing Order Right to Appeal:
If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:
1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal,” and file the
form with the Clerk of the Court of Workers’ Compensation Claims within seven
business days of the date the expedited hearing order was filed. When filing the Notice
of Appeal, you must serve a copy upon all parties.
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
calendar days after filing of the Notice of Appeal. Payments can be made in-person at
any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
website or any Bureau office) seeking a waiver of the fee. You must file the fully-
completed Affidavit of Indigency within ten calendar days of filing the Notice of
Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
result in dismissal of the appeal.
3. You bear the responsibility of ensuring a complete record on appeal. You may request
from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
it with the court clerk within ten business days of the filing the Notice of
Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
parties within ten business days of the filing of the Notice of Appeal. The statement of
the evidence must convey a complete and accurate account of the hearing. The Workers’
Compensation Judge must approve the statement before the record is submitted to the
Appeals Board. If the Appeals Board is called upon to review testimony or other proof
concerning factual matters, the absence of a transcript or statement of the evidence can be
a significant obstacle to meaningful appellate review.
4. If you wish to file a position statement, you must file it with the court clerk within ten
business days after the deadline to file a transcript or statement of the evidence. The
party opposing the appeal may file a response with the court clerk within ten business
days after you file your position statement. All position statements should include: (1) a
statement summarizing the facts of the case from the evidence admitted during the
expedited hearing; (2) a statement summarizing the disposition of the case as a result of
the expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an
argument, citing appropriate statutes, case law, or other authority.
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
Filed Date Stamp Here EXPEDITED HEARING NOTICE OF APPEAL
Tennessee Division of Workers' Compensation
Docket#: - - - -- -- - --
www.tn.go v/labor-wfd/wcomp.shtm l
State File #/YR: - - -- - - --
wc.courtclerk@tn.gov
1-800-332-2667 RFA#: _ _ _ _ _ _ _ _____ _
Date of Injury: - - - -- - - - -
SSN: _______ _ ______ __
Employee
Employer and Carrier
Notice
Noticeisg~enthat _ _ _ _ _ _ _~~--~~~~---~~~--------~
[List name(s) of all appealing party(ies) on separate sheet if necessary]
appeals the order(s) of the Court of Workers' Compensation Claims at _ __
-~~~-----~~~~~~~~-to the Workers' Compensation Appeals Board .
[List the date(s) the order(s) was filed in the court clerk's office]
Judge___________________________________________
Statement of the Issues
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
Additional Information
Type of Case [Check the most appropriate item]
D Temporary disability benefits
D Medical benefits for current injury
D Medical benefits under prior order issued by the Court
List of Parties
Appellant (Requesting Party): _____________ .A t Hearing: DEmployer DEmployee
Address:. _______________________ ______________ ___________
Party's Phone:.____________________________ Email: _________________________
Attorney's Name:________________________________ ___ BPR#: - - - - - - - - - - - -
Attorney's Address:. _ _ _ _ _~~-~~~~----~~---- Phone:
Attorney's City, State & Zip code: _____________________ ___________ _ _ _ __ _
Attorney's Email :_ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ __ _ _ _ __ _ _ _ _ _ _ __
*Attach an additional sheet for each additional Appellant*
LB-1099 rev.4/15 Page 1 of 2 RDA 11082
Employee Name: - - - -- - - -- - - - SF#: _ _ _ _ __ _ _ _ _ DO l: _ __ _ __
Aopellee(s)
Appellee (Opposing Party): _ _ _ _ _ _ _ _.At Hearing: OEmployer DEmployee
Appellee's Address: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Appellee's Phone:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _.Email:_ _ _ _ _ _ __ _ _ _ _ _ __
Attorney's Name:_ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ BPR#: - - - - - - - -
Attorney's Address:._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Phone:
Attorney's City, State & Zip code: - - - -- - - - - - - - - - - - - - - - - - - -- -
Attorney's Email:._ _ _ _ __ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, certify that I have forwarded a true and exact copy of this
Expedited Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all parties
and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee Rules of
Board of Workers' Compensation Appeals on this the day of__, 20_ .
[Signature of appellant or attorney for appellant]
LB-1099 rev.4/1S Page 2 of 2 RDA 11082
.
ll .I
Tennessee Bureau of Workers' Compensation
220 French Landing Drive, 1-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
I, , having been duly sworn according to law, make oath that
because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be
waived. The following facts support my poverty.
1. Full Name:_ _ _ _ _ _ _ _ _ _ __ 2. Address: - - - - - - - - - - - - -
3. Telephone Number: - - - - - - - - - 4. Date of Birth: - - - - - - - - - - -
5. Names and Ages of All Dependents:
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
- - - - - - - - - - - - - - -- - Relationship: - - - - - - - - - - - --
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
6. I am employed by: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - , -
My employer's address is: - - - - - - - - - - - - - - - - - - - - - - - - -
My employer's phone number is: - - - - - - - - - - - - - - - - - - - - - - -
7. My present monthly household income, after federal income and social security taxes are deducted, is:
$ _ _ _ _ _ _ ___
8. I receive or expect to receive money from the following sources:
AFDC $ per month beginning
SSI $ per month beginning
Retirement $ per month beginning
Disability $ per month beginning
Unemployment $ per month beginning
Worker's Camp.$ per month beginning
Other $ per month beginning
LB-1108 (REV 11/15) RDA 11082
9. My expenses are: ' ; !•
'
Rent/House Payment $ per month Medical/Dental $ per month
Groceries $ per month Telephone $ per month
Electricity $ per month School Supplies $ per month
Water $ per month Clothing $ per month
Gas $ per month Child Care $ per month
Transportation $ per month Child Support $ per month
Car $ per month
Other $ per month (describe:
10. Assets:
Automobile $ _ _ __ _
(FMV) - - - - - -- - - -
Checking/Savings Acct. $ _ _ _ __
House $ _ _ _ __
(FMV) - - -- - - -- - -
)
Other $ _ _ _ __ Describe:_ _ _ __ _ _ _ _ __
11. My debts are:
Amount Owed To Whom
I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
_ _ _ dayof _____________ ,20____
NOTARY PUBLIC
My Commission Expires:_ _ _ _ _ __ _
LB-1108 (REV 11/15) RDA 11082